Court Urged Not To Accept Spec. Ed. Funding Cases

A deep split among federal courts over whether school districts must
pay for special education services for children voluntarily enrolled in
private schools has been resolved by the new federal special education
law, the Clinton administration has told the U.S. Supreme Court.

The reauthorized Individuals with Disabilities Education Act "makes
clear that it imposes no obligation on states and localities to spend
their own money on services for such children," the Department of
Justice states in a brief filed with the high court this month.

The court asked for the department's views on the issue last
December, shortly after Congress adjourned without reaching agreement
on what to include in a reauthorized version of the IDEA.

At issue is an important legal question that has received less
attention than hot-button disputes over disciplining students with
disabilities and school district reimbursements to parents who place
their children in private schools when their public school special
education plans do not work out.

In three cases pending at the Supreme Court, the issue is whether
districts were obligated under the IDEA to pay for auxiliary services
for children with disabilities whose parents chose to enroll them in
private schools. These services include sign language interpreters for
hearing-impaired children and instructional aides for children with
severe physical disabilities. The high court could announce this month
whether it will hear the three cases.

No 'Individual Entitlement'

The Justice Department filed its brief in a case from Indiana called
K.R. v. Anderson Community School Corp. (Case No.
96-323), but it essentially covers all three pending appeals. The
department told the high court it should not accept any of the appeals
because the new version of the IDEA now makes clear that disabled
children enrolled voluntarily in private schools are entitled only to
the amount of services covered by federal special education funding.
While federal funding typically covers only 6 percent to 8 percent of a
child's special education needs, state and local officials would not be
obligated to cover the remaining costs of requested services.

"Because states and localities provide the overwhelming majority of
public funding for special education services," the brief adds, the
revised law "necessarily forecloses any claim ... that a disabled child
placed by his or her parents in a private school has an individual
entitlement to any particular special education service available to
public school children."

The department further argues that this was the correct
interpretation of the law even under the old version of the IDEA. If
Congress had not clarified the matter, the high court would have needed
to resolve the conflict among the federal appeals courts, the
department said. But that is not necessary now, it said.

Last year, in K.R., the U.S. Court of Appeals for the 7th
Circuit ruled that the IDEA does not give disabled students voluntarily
enrolled in private schools an entitlement to the same services they
would receive in public schools or if a district placed them in private
schools. The court said the Anderson, Ind., district did not have to
provide a full-time aide to a severely disabled girl enrolled by her
parents in a private school.

However, three other federal appeals courts have ruled recently that
the IDEA requires districts to provide essentially the same level of
services to children voluntarily enrolled in private schools. Two of
those rulings have also been appealed to the Supreme Court. In Board
of Education v. Russman (No. 96-776), the U.S. Court of
Appeals for the 2nd Circuit ruled that the Watervliet, N.Y., district
must provide a teacher's aide for a severely disabled girl attending a
Roman Catholic elementary school.

In Fowler v. Unified School District No. 259 (No.
96-1633), the U.S. Court of Appeals for the 10th Circuit ruled that the
IDEA compels school districts to pay for special education services for
children in private schools up to their average costs for providing the
same services in public schools.

At most, the Supreme Court may wish to vacate and return to the 2nd
Circuit and 10th Circuit rulings that upheld the requirement for equal
services for children enrolled in private school, Justice Department
officials said in their brief.

Delinquency Case

In a separate action, the high court last week declined to hear an
IDEA-related appeal from a Tennessee school district.

The Knox County district asked the court to review a federal
appellate ruling that said school officials could not report delinquent
behavior by a learning-disabled child to juvenile authorities without
first following the procedures for a change of placement under the
special education law.

Without comment, the high court declined to hear the case of
Morgan v. Chris L. (No. 96-1681).

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